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Family can sue school over suicide, Del. high court says

WILMINGTON, Del. — The Delaware Supreme Court has ruled that a couple has sufficient grounds to sue a school district, high school and school counselor for the 2009 suicide of their 16-year-old grandson.

The ruling reversed a 2012 Superior Court decision that dismissed the complaint of Linda and Frederick Rogers of Newark, Del. Their grandson, Roger L. "Mac" Ellerbe Jr., took his life at home, hours after speaking with a counselor at Newark High School about his suicidal thoughts and other problems.

The grandparents, who had raised the teen from infancy, said the school should have notified them of the boy's crisis so they could respond. Ellerbe's father, Roger Sr., also was named as a plaintiff.

In the opinion, the Supreme Court justices agreed with Judge Jan Jurden of New Castle County Superior Court that neither the school nor Christina School District had any special legal relationship to the boy and could not be held liable for something he did at home.

But the Supreme Court accepted the Rogerses' argument that a negligence claim could be pursued. The district had specific rules on how to handle an adolescent in suicidal crisis. The protocol included mandates to stay with a student, assess the situation, contact parents, get help, document, file and follow up.

The case now goes back to Superior Court.

Reached at home Wednesday, Linda Rogers said she was glad the case would go forward.

"I'm going to let God be God and let him have his way," she said. "He knows all things. I didn't get a chance to know what was going on with Mac. There's nothing I can do for Mac at this point, but we can try to help other children."

According to court records, Ellerbe first attempted suicide Nov. 1, 2009. A few friends learned of the attempt the next day at school and one of them asked a teacher how to respond if a classmate was having suicidal thoughts. The next day, that teacher told a school interventionist, Margette Finney, of the student's concern and Finney met with Ellerbe for more than four hours, calling in his girlfriend at one point to discuss their relationship.

“I didn't get a chance to know what was going on with Mac. ... But we can try to help other children.”

Linda Rogers, grandmother

In e-mail to several school colleagues later that day, Finney said, "After talking with Roger Ellerbe in great detail, I feel that he is not a threat to himself."

In the same e-mail, Finney said she asked Ellerbe to write down his feelings. According to court documents, his statement ended upbeat: "I have a smile on my face, I am ready for school and I know I am being loved."

Finney also wrote that she would call Ellerbe's grandmother, but whether she attempted to do so is in dispute. School officials say she left a message at Linda Rogers' job, but that General Motors position had been terminated earlier in the year when GM closed its shop. No call was made that day to Rogers' home, where she was working at a day care she had opened there. Ellerbe hanged himself in the basement of his grandparents' home that night.

Lawyers for the school district, the high school and the counselor did not return phone calls Wednesday. But in a hearing in the fall, they argued that the school had no duty to protect a student after he left school premises. They also argued that a district's crisis protocol was not a legal mandate.

The justices agreed that the school had no special legal duty or relationship to the student. Delaware code recognizes a school's responsibility to care for students in the absence of their parents — a doctrine called in locoparentis — but state law limits that responsibility to disciplinary action.

But they were unanimous that the district's written protocol, mandating parental notice in case of suicidal statements, provided sufficient grounds for a negligence claim.

"It's a scholarly opinion in which the court is avoiding all kinds of alligators," said lawyer Stephen B. Potter, who represented the Rogerses. "It's an interesting exercise on how the law of negligence works. It goes through it carefully — as interested in distinguishing where it does not apply as where it does apply."